Pubs are facing the threat of a legal double whammy as local authorities begin to use the Licensing Act to enforce smoking ban-related issues, lawyers have warned.
With many city-centre pubs not owning land at the back of their properties, drinkers wanting to smoke have been forced on to pavements at the front. The resulting increase in noise and other drink-related problems has led to local residents making more complaints, which fall under the jurisdiction of the Licensing Act.
Speaking at a licensing seminar in London last week, Jeremy Bark, associate director at law firm Berwin Leighton Paisner (BLP), said: "Increasingly residents are complaining about the impact of the smoking ban and this will have a huge impact on the Licensing Act. We are not really sure that it is a licensing issue."
Bark said there was some evidence that local authorities were using the act to enforce smoking issues, although he added it would take at least a year of the legislation to see if this became a major problem.
Craig Baylis, partner at BLP, warned that local authorities could call a review - with the threat of a loss of licence - if complaints about outdoor smokers rose.
"You cannot keep people having a cigarette inside the premises because that breaches the law. But if they are causing problems outside your premises, and there are concerns about noise and a vast increase in complaints, then a local authority is likely to call a review under the provision of public nuisance," he said.
Bark said the only way around the issue for licensees was to keep a strict control on customers taking drinks outside. This would make it "very difficult for a local authority to review your premises' licence", he explained.
Licensing review is not new
The British Beer & Pub Association (BBPA) has played down the significance of Gordon Brown's Labour Conference announcement that he would review the Licensing Act, with a view to potentially reversing the policy.
Neil Williams, communications manager at the BBPA, said that the act had been effectively "under review" since it was implemented in 2005. Other industry sources suggested the announcement was "nothing new" and simply a political gesture.
The prime minister's speech came in the week the BBPA wrote to London MPs detailing figures that show a reduction in alcohol-related crime in Westminster and Camden since the implementation of the act.
By Christopher Walton